Kucheida and Shannen

FAMILY COURT OF AUSTRALIA

KUCHEIDA & SHANNEN

[2017] FamCA 796

FAMILY LAW – CHILDREN – Mental health vulnerability of a parent – impact of history of family violence on parent – developmental risks to child

Family Law Act 1975(Cth) ss 60CC and 68B

APPLICANT:

Mr Kucheida

RESPONDENT:

Ms Shannen

INDEPENDENT CHILDREN’S LAWYER:

Ms Mary Burgess

FILE NUMBER:

PAC

5887

2014

DATE DELIVERED:

5 October 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

1 November 2016, 6-9 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing, assisted by a McKenzie Friend

COUNSEL FOR THE RESPONDENT:

Ms Humphries

SOLICITOR FOR THE RESPONDENT:

Melea Mullard Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Yeend & Associates

Orders

The mother shall have sole parental responsibility for the child, B, born … 2010 (the child).
The child shall live with the mother.
The father shall provide the mother with an e-mail address at which he can be contacted by the mother or the child.
The mother shall send an e-mail to the father within seven days of the conclusion of each school term providing him with information including:
(a)       The school the child attends;
(b)       His progress at school, including any available reports;
(c)       Any significant health concerns;
(d)       Any participation in sporting or other extra-curricular activities; and
(e)       A current photograph of the child.
The child shall spend time with the father supervised by C Group at D Town, New South Wales, or at such other professionally supervised venue as may be agreed by the parties, on one day during each school holiday period and for one day during each school term for as many hours as that organisation can provide, the fees of such supervisor to be met by the father.
In the event that the parties are unable to agree on the days for the father to spend time with the child, the father shall spend time with the child on the first day of the school holiday period that C Group or the agreed supervisor is available, and on the fourth Saturday of each school term, provided the father has given to the mother 21 days’ notice in writing of his intention to attend.
The father shall be at liberty to send cards and gifts to the child and the mother shall ensure the child receives any such items and encourage the child to respond appropriately.
The mother and father may communicate with each other in writing, including by email or SMS in order to implement these orders.
For the personal protection of Ms Shannen, pursuant to s 68B Mr Kucheida is restrained from, other than in accordance with these orders:
(a)Communicating with the mother;
(b)Approaching within 100m of the mother;
(c)Attending at the mother’s residence or workplace;
(d)Attending the child’s school; and
(e)Removing the child from the care of the mother or from the supervision of C Group at D Town or such other professional supervisor that has been agreed upon by the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kucheida & Shannen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 5887 of 2014

Mr Kucheida

Applicant

And

Ms Shannen

Respondent

REASONS FOR JUDGMENT

Introduction

B was born in 2010. He is now six years old. His parents separated at some time between 2010 and 2014. On the mother’s account it was closer to 2010 and on the father’s it was closer to 2014. In the last two years the father has seen little of the child. The child lives on the South Coast of New South Wales and the father lives in Melbourne.
On the father’s case the child is at risk, developmentally, if he remains living with his mother. The father’s concern is that the mother’s alleged Borderline Personality Disorder will adversely impact on the child’s development.
The result of this, the father says, is that the child should live with him, but that the important relationship that he has with the mother should be fostered and preserved. How this might occur is unclear but, on the father’s case, it involves the mother moving from the South Coast to live near him in Victoria.
The mother disputes the diagnosis of Borderline Personality Disorder.
On the mother’s case the father has been controlling and violent toward her. She says that he has withheld finances, withheld her passport while they were in Europe, manipulated her and treated her as if their relationship was ongoing when it was not.
She says that the father has mental health issues and poses a risk to the child, in that he may hurt the child or fail to supervise or care from him sufficiently to protect him from harm.
Her case is that the father should form a part of the child’s life, but only in circumstances where there is no risk of harm.
The Independent Children’s Lawyer’s position is that the child should live with the mother and have supervised time with the father for one day each school holiday period.
This framing of the key issues means that, in determining the child’s best interests, the relevant objects of the Act that are primarily engaged relate to how the involvement of each of the parents in the child’s life can benefit him, or alternatively, expose him to family violence, neglect and hinder his development, and the harm that may flow from that. There is a prominent question as to how each parent is able to parent the child to help him to achieve his full potential. The central areas of factual dispute requiring resolution to answer these issues are as to the mental health of the parties and the allegations of family violence.
In this case the primary considerations are the dominant s 60CC factors, in particular when coupled with:
a)Section 60CC(3)(b) - the nature of the relationship between the child and each of his parents;
b)Section 60CC(3)(f) - the capacity of each of the parents to nurture the child;
c)Sections 60CC(3)(j) and (k) - the presence and effects of family violence and operation of family violence orders; and
d)Sections 60CC(3)(d) and (e) - the effect of change upon the child and the practicalities involved with the child spending time with each of his parents.
Other s 60CC factors have been raised, although they are of lesser prominence here, for example 3(ca) - the obligation to maintain the child.

Mental health issues

Dr E was the Single Expert appointed to psychiatrically assess the parties. He provided three reports, one in relation to the father, one in relation to the mother, and one responding to additional questions posed to him by the Independent Children’s Lawyer. Dr E recognised that there were some limitations in the assessments made as he was not in a position to assess the veracity of the history that each of the parties gave about their interactions with the other. This included what each said about family violence in their relationship.
He did, however, make some assessment of the veracity of the mother’s account to him of her mental health history, an account that conflicted with the material produced under subpoena.
It is also apparent that the father’s account to Dr E was not always accurate. For example, he accused the mother of fabricating the account of him defacing a picture with the child and Santa. During the proceedings he admitted that he had defaced the picture, explaining that he had not been truthful to Dr E out of fear that this matter would disadvantage him.
Dr E assessed the father from the perspective of whether the father had a psychiatric condition that would mean that he should not see the child. He assessed him as having Borderline Personality Disorder traits and mild social anxiety. The consequences of this diagnosis were not set out until the supplementary report. Dr E said that the social anxiety was mild but may cause some stress for the father. The Borderline Personality traits appeared to impact upon the father’s ability to sustain relationships. Dr E did not think that these constituted a psychiatric reason for the father not to be seeing the child. He did not assess the father as a potential primary carer.
Although the mother disputed the accuracy of part of the material produced on subpoena, the extent of the inconsistencies set out by Dr E at page 7 of his report on the mother and the nature of those inconsistencies gives a good basis for the conclusion that he expressed at [4] of the supplementary report, being that the mother had sought to minimise her psychiatric history. This leads to doubt about the level of insight that the mother has into her mental health. The result of this, according to Dr E, is that the mother’s “prognosis must be guarded.” It is difficult to have confidence in the mother’s candour and insight in dealing with her own mental health.
Controversially within the proceedings, Dr E assessed the mother as suffering from a Borderline Personality Disorder. She disputed this diagnosis. In the supplementary report at [3] Dr E set out the reasons for concluding that the mother has a Borderline Personality Disorder, based in large part on the history of the mother as disclosed in the material produced on subpoena, which disclosed long periods of treatment, a significant history of suicidal ideation, substance abuse and lengthy treatment with antidepressants. It appears highly likely that the mother suffers from a Borderline Personality Disorder.
The end point of Dr E’s report in relation to the mother was that the
Court needs to be concerned about the possible impact of [Ms Shannen’s] mental state on the psychological, physical and social development of her child.
These risks flow from some of the characteristics or strategies a person suffering from the disorder may adopt to cope. The effect of this disorder is it results in impulsive behaviours as a way of managing the disorder. A number of examples of such behaviours were given.
One was the potential for a person to resort to perfectionism and controlling behaviour. If that was the case here it could be productive of conflict between the child and the mother. However, no examples of such conduct toward the child were identified. No deficiency in the child’s development in relation to this was described.
A second example of such impulsive behaviour was the abuse of alcohol or drugs. In this case the mother attended a rehabilitation facility prior to the parties entering into a relationship. She does not accept that she currently suffers from drug or alcohol abuse. She did not accept that it was necessary for her to attend a rehabilitation facility. No evidence was led to suggest that the mother has a current issue regarding the abuse of alcohol or drugs.
A third example was the suffering from uncontrollable or explosive anger. Although the mother denied saying it, Dr E reported that she told him she had a long fuse and would then snap. During the relationship, the mother caused her long-term General Practitioner to write a letter for the father to use with third-parties that set out the mother’s difficulties with anger. The circumstances of obtaining this letter were disputed. The father said it was obtained at the request of the mother. The mother said that she was compelled to obtain the letter by the father. Although I am uncertain whether the letter represents recognition by the mother of an anger problem, accepting Dr E’s account leads me to conclude that the mother acknowledged to him some anger management issues.
A fourth example of potential impulsive behaviours as a coping mechanism for a Borderline Personality Disorder was suicidal ideation and action. The connection to the disorder is that it may either be seen as a way out or as a means of finding support. In this case, suicidal ideation for the mother predated her relationship with the father. There were, however, no recent examples cited, that is, examples occurring since the birth of the child. Dr E identified that the risk for the child would not be a risk of direct harm, that is, he did not expect that the mother would inflict any harm on the child. Rather, the risk to the child comes from the child taking on the same harmful coping strategies as may be adopted by the mother. That is, it is a developmental risk for the child. Dr E thought that there was a risk that suicidal ideation could re-emerge for the mother, dependent upon outside stressors.
Dr E thought that the mother becoming distressed could act as a trigger for impulsive behaviour.
The mother is vulnerable to a degradation in her mental health should she be exposed to distressing circumstances. The consequence of such degradation is the potential reliance on the above described coping mechanisms. If the mother is pushed into such coping mechanism there is an adverse impact on the child. In these proceedings the mother faces outcomes that could be acutely distressing.

Family Violence

Central to the case of each of the parties was the issue of family violence. The mother outlined a number of incidents of family violence. In his affidavit the father denied all violence. The father made general allegations of violence by the mother connected to her mental health.
When cross-examined generally about the mother’s allegations of family violence, the father responded “I deny most of it”. He explained that he gave that answer (which was at odds with the denial in the affidavit material) because of the confusion that existed in the parties’ lives during their period together.
He explained that they had a “pretty dark” period of relationship. He felt that his brain was not recollecting fully what happened, although he had flashbacks and feelings about what had occurred. He qualified this to say that he thought that he could remember the facts of what had occurred but not the detail. He further explained that he thought that both of the parties had improved, but a period of their relationship was a very dark moment in both his and the mother’s existence.
The father’s blanket denial, followed by an equivocal answer about the family violence, his description of darkness of relationship, and his assertion of problems in recollecting, led me to have grave concerns about the reliability of his denials. These concerns were reinforced because of his evidence in relation to specific episodes of violence.
The father agreed that in 2009 he made, and contributed to, posts on a website using the pseudonym/username of Richard III. He characterised his contributions as giving advice to men, particularly about relationships. Exhibit M2 contains an extract of a post by Richard III where he described a difficulty that he had with his long-term relationship, in that his partner twitched in her sleep to a degree that caused him to wake. He described having punched her on a number of occasions in response to being woken. Although asserting that he could not remember the post, he acknowledged it was his post. These were occasions of impulsive violence in response to being woken. They raise significant questions about the risk of the father engaging in violent conduct to someone who is in a vulnerable position with respect to him.
The mother described a particularly violent incident on their wedding day where she was pinned to the bed with the father forcefully applying his hands to her face and eyes. She said she was left with a black eye and a chipped tooth. In his affidavit material the father explained that on the wedding day the mother fell over on multiple occasions. Under cross-examination he accepted that she suffered a black eye on the wedding day. To explain this this he said that all that he could remember was that something uncomfortable had happened. He said that he could see darkness and remembered waking up with both of the parties being hurt. When they woke she had a bruise on her eye and he explained that he felt afraid. When asked why it was that he felt afraid, he said that the image of her eye was not one which would make somebody comfortable. Initially he said he did not know why he was uncomfortable but indicated that he thought that she may have been injured as a result of an argument or a fight with him. The father said that he was frightened that perhaps he had caused the black eye.
The mother’s mother, Ms F Shannen, gave evidence that there was a conversation about the black eye the next day, wherein the father had stated ‘words to the effect of “[Ms Shannen] and I had an argument the other night and I gave her a black eye”’. The father accepted that there would have been discussion the next day but could not recall the conversation. He explained that that the lack of recollection was because his brain preferred to be more positive.
The mother also alleged a severe instance of violence occurring during their honeymoon in the Northern Territory. She said that she was pushed to the ground; the father sat on her chest, and then pulled her over the gravel. She said that the father withheld from her the money that she had provided so that they could have the honeymoon.
The father said that the mother’s account was exaggerated. He explained that the mother would have anxiety fits in which she would become very violent and he had to do the best that he could to restrain her. The restraint, on that occasion, involved using a bear hug upon the mother. He did not explain to the Court what conduct it was that the mother had engaged in that would lead to the requirement that he exert physical force upon her. He went on to further explain that there were occasions where he would either use a bear hug or hold her to the ground. This was necessary, he said, because a husband is not a psychiatric attendant and did not have the facilities available to him that a psychiatric attendant would. He asserted that he did this as the mother was in extreme distress and that doing so was his means of attempting to calm her.
He accepted that the mother had attempted to remove money from his pocket. Part of the mother’s description of the incident was that the father had taken her money from her, and she was unable to return from the Northern Territory because of this. This is to some extent supported by Ms F Shannen’s evidence that the mother had contacted her in order to obtain the funds to get an airfare back from the Northern Territory. She provided those funds to her daughter and she was able to leave the Northern Territory.
It seems from the father’s answers that he applied physical force to the mother during their Northern Territory honeymoon. He has chosen not to set out the full circumstances of how he came to do that.
Ms F Shannen described a further incident where the mother told her that the father slapped her in the face while she was driving the car to G Town. The father denied this had occurred. However, the mother made an immediate report to her mother on arrival at G Town, showing her a bloodied mouth. Ms F Shannen took photographs of the injury which were annexed to her affidavit.
The mother further described incidents occurring while she was in Europe with the father. In particular, she complained that he restricted her access to her passport. He accepted that he had taken the passport, although appeared to deny it was for the purposes of controlling the mother. He accepted that she had come to meet him at the airport in an attempt to get the passport from him. That is, he had travelled away from her with the passport. The father’s mother described the actions of the mother at the airport in attempting to regain her passport. She accepted that the mother had run at and then jumped on the father in an attempt to get the passport. She described them as fighting. The description shows a high degree of desperation on the part of the mother to regain the passport. She was, under those circumstances, in a foreign country with the father controlling her access to her passport. The retention of the passport by the father was highly troubling to the mother.

Exhibit F1 is a series of extracts from subpoenaed material obtained from the New South Wales Police. Although one entry is in the year 2000, the bulk of the entries occurred between 2009 and 2011. In large part they involve police attendances of interactions between the mother and father. On a number of occasions the father is located at the mother’s home, either in spite of an Apprehended Violence Order or in spite of bail conditions that provided that he was to live elsewhere. On each of the occasions of the police attendances, there appeared to have been an altercation between the mother and the father, although they each appeared to indicate that, until the point of the altercation, the father had been there with the mother’s permission.
One of the entries, tagged number 4 from 4 June 2010, recorded that the mother had been hit with a door by the father. These are in circumstances where the father was leaving the home following an argument with the mother. On this occasion the mother declined to provide a statement to the police and so the circumstances under which she came into contact with the door were unclear.
The father suggested that this, along with the mother’s letter to the immigration authorities in 2008 (Annexure F to the father’s affidavit) showed that the mother was not genuine in her expressed fear of him. The mother expressed that the declining to provide a statement to police, and the letter provided to immigration, were the product of the father’s manipulation. Taken on their own, either explanation is plausible.
Without further evidence regarding the circumstances of these police attendances, they at least show a seriously conflictual relationship between the parties. They do not allow findings in respect of family violence for those occasions.
In support of his description of the mother’s angry interactions with him, the father tendered and then cross-examined the mother about a number of recordings that he made of her. He was also questioned about the recordings. In some of the recordings the mother appears to be aware of the recording, but in the majority she was unaware. On each recording the mother was in a distressed or angry state and the father presented as calm. The mother’s account was that the father would antagonise and harass her, recording the result. Even when speaking calmly, the father’s responses to the mother were antagonising. The father accepted that at times he deliberately antagonised the mother in order to record the result. The father said that he made the recordings for a therapeutic reason (to show how the mother behaved when out of control), and also, potentially for evidence at the suggestion of the police. He sent a compact disc of the recordings to Dr H (psychiatrist for the mother). While in the recordings the mother appeared to be angry, the circumstances of the recordings do not lead to a conclusion that the mother has a volatile temper. They do not lead to a conclusion that the mother engaged in family violence toward the father.
The father cross-examined the mother about her decision to have a dog, J, put down. The father put this forward as an instance of family violence by causing the death of an animal. The mother explained that J was an aggressive dog, necessitating her being put down. I am unable to find that this is an instance of family violence on the part of the mother.
In summary, the relationship between the parties has been characterised by violence and other behaviour that has, at least on a number of occasions, been coercive or controlling or caused fear for the mother. The examples are widespread, spanning years.
This family violence provides an important background to understanding the dispute between the parties regarding the nature of their relationship. This is important because it bears upon the mother’s future capacity. The mother told the family report writer[1] that she thought that her relationship with the father was dangerous (she said “life threatening”), unhealthy, toxic and significantly detrimental to her mental health. In contrast, the father asserted to the family report writer that he is certain that the mother will seek him out in the future and that he still considers her to be his family.[2] The family report writer noted the father as dismissive of the mother’s expressed reports of being frightened of him and formed the view that the father appeared as keen to see the mother as he was to see the child.[3] The family report writer assessed the father as not thinking that the mother’s expressed wishes to have no contact with him were genuine.
[1] Family Report [14].
[2] Family Report [33].
[3] Family Report [35].
That this was the father’s view was reinforced by the father’s comments regarding his last face-to-face visit with the child at K Town. He took Mr L (a friend of his not known to either the mother or the child) with him and spent time with the child at a restaurant. The mother attended for part of this time but left the restaurant to take a telephone call for an extended period. The father expressed that he thought that this was inappropriate and that she should have been there for the dinner, because it would be nice for the child to see both of the parents. In isolation this view is innocuous. In the context of the control and fear within the relationship identified above it represents a further example of control.
This view is again reinforced by the observations of Dr E that the father’s proposal that the mother move to live near him and the child (if it is ordered that the child live with him) appeared to exhibit a controlling attitude toward the mother.
A further disparity in the parties’ understanding of their relationship was the report by the family report writer that the mother regarded the father as being a trigger for her mental health problems. Noting Dr E’s view that distress may trigger the mother’s mental health problems, the father’s conduct through the relationship outlined above was likely to be highly productive of distress. The mother’s assessment is reasonable.
In contrast, the father believed that he had a containing effect upon the mother. He asserted to the family report writer that, due to her Borderline Personality Disorder, the mother needs containment and control. The family report writer accepted that there were alternative characterisations of the father’s view of containment and control. He could either be characterised as violent and controlling or as generally concerned for her welfare and wanting to assist. Whether both remain open is dependent upon the assessment of the various incidents deposed to by each of the parties. That assessment of those acts being in large part either to cause fear, to coerce or control, leads to a conclusion that the father’s perception of a necessity to contain and control is a fertile breeding ground for family violence.
The odd interactions between the parties after, on the mother’s account, the end of the relationship, give further cause to believe that the father still holds an intention to control or contain. For a period of time the father stayed at the mother’s home in his van, while working from her veranda. On another occasion he attended the home to fix the child’s trampoline, resulting in the mother threatening to call the police. Neither of these incidents sat well with the father’s contention that the relationship was ongoing. While without context these could be innocuous, in the context of the violence and control in the relationship, each appeared to be invasive and again indicative of an intention to control.
The father’s mother (Ms M) gave evidence that the father had not told her that he and the mother had separated, nor that they were divorced until the day before she gave evidence, was consistent with the father’s view that the relationship was ongoing and that the mother would come back to him.
The combination of the family violence within the relationship, the view of the mother that the father is detrimental to her mental health and the views of the father regarding his role to contain the mother and continuing prospects for the resumption of the relationship leave the mother at continuing risk. Contact and interaction with him places her at risk of harm to her mental health.

The child’s relationship with the father

The father has had limited time with the child. There was conflicting evidence about how frequently he has seen the child. Initially he lived in N Town after the mother moved to the South Coast. He then moved to Melbourne. Either is a significant distance from where the child lives. Even accepting his account of visits to the child, the frequency was at best initially about monthly, reducing to no visits for more than a year.
The father believes that there is a natural connection between the child and himself that means that they are able to “feel and recognise” each other despite living apart. This also means that they do not miss each other because this natural connection means that there is no insecurity in the relationship.[4]
[4] Father’s primary affidavit filed 25 January 2017 at [5] and following.
The family consultant assessed the child as having a limited relationship with the father. At present it is minimal and fledgling. At the same time, the interaction between the child and the father was one that the child coped well with.
The mother accepted that the child wants to spend time with his father and has a positive perception of his father. She further accepted that in the various videos attached to Exhibit F3 the child was giggling, running to his father and appeared to enjoy the time that he spent with his father. In spite of a history of limited time, she did not think that the child loved her more than he loved his father. Despite difficulties for the mother in dealing with the father, the child presents positively regarding the father.
The mother said that if she was satisfied that the child was safe then it would be in the best interests for the child to spend time with his father. Not only this, it would be the perfect outcome and would be “really amazing”.
However, the mother expressed a number of serious concerns that means that she is unlikely to be satisfied as to the child’s safety. The concerns stemmed from the violence that she has seen and experienced with the father, admissions the father has made of past violence, instances of aggression on the part of the father, and asserted sexual obsession.
The mother pointed to annotations made by the father on a Christmas photograph taken shortly after the child’s birth as to the sexualising of the child. Initially he denied his responsibility for the annotations, explaining he was concerned that it would cast him in a poor light. He then agreed that he drew the annotations that depicted the child with a large penis and the mother with sagging breasts. While accepting that he drew the annotations he described that “the hand of God did it”. I took this idiosyncratic expression to mean that it was an impulsive act on his part, not a thought-out process. I did not take him to be suggesting that he had lost control of himself. While it may be described as distasteful and juvenile in respect of the child, I do not conclude that it was a sexualising of the child. The more troubling aspect was the depiction of the mother. Given that the father published the picture to others, it was highly disrespectful of the mother. The evidence did not permit me to find a sexual obsession on the part of the father.
The mother expressed concern that the father could be violent towards the child. There was no evidence of any instances of violence towards the child in the past. The mother pointed to comments the father was said to have previously made regarding discipline and children. These did not evidence a particular risk to the child. The more cogent risk pointed to was that of the father “losing it”. His violence toward the mother gave his violence an impulsive character. The admitted violence to the mother on being woken was concerning in the context of the child waking many times in the night.
The mother was also concerned that the father might “mess with” the child’s mind. The father’s contention (without any factual foundation) that the mother poses a sexual risk to the child because she is a single mother, and the content recorded in the Family Report of the father speaking to the child about the mother, indicate that this is a risk.
The mother was further concerned that the father is unpredictable and may take the child away. There was no evidence of an attempt or threat to do this.
The mother asserted that she thought that the child would die if he was left alone with the father on the basis that the father is unable to understand anybody’s needs but for his own. For this reason she thought that even a trip to the beach would result in the child drowning. While the father is unproven in his care for the child, the evidence did not sustain this level of risk.

The child’s relationship with the mother

According to the Family Consultant, the child “described a close and positive relationship with his mother”.[5] He was “confident and comfortable” with the mother who was “child focused and mindfully engaged with him”.[6]
[5] Exhibit C1 [39].
[6] Exhibit C1 [41].
The child sees the mother “as his main support and as someone who can contain his negative or upset feelings when need be”.[7]
[7] Exhibit C1 [53].
The Family Consultant noted the records from the child’s child care centre show him to be settled, calm, socially and cognitively progressing well, with a “lovely happy nature”.[8]
[8] Exhibit C1 [44].
The father said that he considered the child’s relationship with his mother to be important. He expressed concerns about the mother’s capacity to parent in the context of her Borderline Personality Disorder. These concerns have been examined elsewhere in this judgement.

Consideration

The Independent Children’s Lawyer seeks orders for the mother to have sole parental responsibility, for the child to live with her and to see his father on a supervised basis for one day each school holiday. The Independent Children’s Lawyer seeks orders for the personal protection of the mother and for the mother to provide to the father ongoing evidence as to her mental health.
The mother seeks orders that she will have sole parental responsibility, that the child will live with her and that he will have no contact with his father. She seeks orders for her protection.[9] In the alternative, she generally adopts the orders sought by the Independent Children’s Lawyer but with no scope for communication from the father.
[9] Mother’s Amended Response to an Initiating Application filed 4 October 2016.
The father asks that he have sole parental responsibility and that the child live with him and spend time with the mother. In the alternative, if the child is to live with the mother, he generally agrees to the orders sought by the Independent Children’s Lawyer on the basis that there is a transition to more time with him than specified by the Independent Children’s Lawyer.
The history of family violence in this matter renders the presumption in favour of equal shared parental responsibility inapplicable. That same history means that it is not in the child’s best interests for it to be shared. The necessity for interaction in the making of important decisions for the child’s long-term care sits ill with parties who see their relationship so differently and whose interaction is likely to cause distress. Where distress is a potential trigger for mental health issues for the mother, such interaction is against the child’s best interest.
Where one party has the primary care of the child it will be appropriate for that party to exercise sole parental responsibility.
There is a sharp difference between the relationships each of the parents has with the child. The mother has always been the child’s primary carer. She has displayed the sort of relationship with the child that will be important for his maturing into adulthood. It is a warm, caring relationship in which the child is developing well. The father has had limited involvement with the child, seeing him on an ad hoc basis that has become less and less frequent. His relationship with the child, although showing some positive features, is limited. The evidence did not show that he has ever had overnight care of the child. There is no demonstration of capacity to provide emotionally for the child.
Against this the father says there are developmental risks for the child with the mother, due to her diagnosis as having a Borderline Personality Disorder. That risk is not currently manifesting itself. There was no evidence to suggest that the child is being adversely affected by the mother. There is no evidence to suggest that at present the mother is manifesting any of the impulsive coping mechanisms associated with the disorder as set out previously. It appears that the largest risk flowing from the disorder is distress acting as a trigger for these coping mechanisms. Absent such there is little reason to think that the disorder might affect the child’s development.
The looming trigger for the mother relates to the father. Their previous relationship is such that he presents as a source of the distress for her that may trigger the adverse coping mechanisms.
The mother points to risks flowing from the father. Her assertion that the husband would be completely careless of the child such that he would drown if taken to the beach did not appear to have a basis on the evidence. However, her fear of his impulsive violence had a solid grounding in the evidence. While that violence has not been upon the child so far, the inexplicable violence shown, for example, in the punching for waking the father, in striking her as she drove to G Town and in giving her a black eye on their wedding day, marks out an unpredictability and impulsivity in the father’s violence. This constitutes a risk to the child, although a risk that varies depending upon the nature and the extent of time that the father spends with him.
These factors mean that it is in the child’s best interest that he live with his mother. It is also in his best interest that the mother not be placed in a position where her mental health is compromised. Dr E’s view was that with appropriate safeguards around time with the child, the mother would be able to cope. However, the mother has good reason to be concerned about the child spending time with his father.
There appears to be potential for the child to benefit from spending time with his father. He and the father interacted positively despite having spent little recent time together. The father is a gateway to the child’s cultural heritage. A regime that provides a safe environment for the child both minimises risk to the child and minimises the risk of destabilisation of the mother.
In general terms, the orders proposed by the Independent Children’s Lawyer for supervised time strike an appropriate balance. They provide for regular time between the father and the child. They provide for an environment where any risk of impulsive violence is minimised, and where it is reasonable for the mother to have some confidence that the child will be safe. They do not require that there be contact between the mother and the father. However, under circumstances where the nature of the time is so constrained, it is appropriate to allow for a greater frequency of visits to allow the child to benefit as much as he is able.
In order to give this time its best prospects of being beneficial to the child, it is important that the father is able to have current information about the child, how he is going at school, any significant medical issues and as to his extra-curricular activities.

On the assumption that there will be a cost for the securing of the supervised time, given the father’s evidence about capacity to access money through his business, it is appropriate that he should meet the costs of such supervision.
The history of violence and controlling behaviour by the father upon the mother means that it is appropriate that there be a restraint to prevent face-to-face contact between them and to minimise interaction between them. Such a barrier benefits the child in preserving the mental health of the mother and directly protects the mother from the father. However, it will be necessary to allow some form of communication to facilitate and organise the time that the child will spend with his father. A provision to allow this to occur in writing, and limited to the implementation of the orders, will appropriately limit the nature of the communication.
The same history means that it is appropriate to restrain the father in relation to both the mother and the child, in each case for the personal protection of the mother. She should not face the prospect of being contacted or approached by the father, nor of the father being able to approach the child other than in accordance with the orders as such a prospect is liable to be harmful to her, and accordingly to the child.
While the Independent Children’s Lawyer sought an order to cause the mother to provide a report to the father each year regarding her mental health, the lack of any evidence of recent mental health issues impacting upon the child means that this step is not warranted. It would seem to provide a breeding ground for the parties to engage in further litigation. Absent a compelling reason in the child’s best interest to require it to happen, it constitutes a significant impost upon the mother to obtain and provide such material to the person who, it seems, is most likely to cause a reduction in her mental wellbeing.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 October 2017.

Associate:

Date: 5 October 2017

[2017] FamCA 796

5 October 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness